British-Afghan barrister 'overwhelmed' by support after 'white male' request

Solicitors should refuse their client's instruction if it breaches their code of conduct, the Law Society has said, after the first female practising Afghan barrister in England and Wales was told by an instructing solicitor that the client wanted a white, male barrister instead.

Barrister Rehana Popal, of 10 King's Bench Walk in London, posted on Twitter yesterday that a solicitor had called her to say that a case she had previously been instructed on, which was adjourned due to a lack of judges, had been re-listed for next month.

'However, the client has said he doesn't want an Asian female but a white male barrister. Solicitors asked if I could please return the papers. Great to know that no matter what you do in life, you'll still be judged by the colour of your skin and gender,' said Popal, who specialises in human rights, public and civil law.

Popal posted her tweets hours after lord chancellor David Gauke championed the importance of diversity at a women in law conference entitled 'Levelling the playing field'.

[1/2] Just had a solicitor call to tell me that a case that I had previously been instructed on, which was adjourned administratively due to lack of judges was now re-listed for December. However, the client has said he doesn’t want an Asian female but a white male barrister.

The Law Society said today that it could not comment on an individual case. However, Christina Blacklaws, president, said: 'What we can be clear about is that solicitors must not discriminate unlawfully against anyone on the grounds of any protected characteristic. A solicitor should refuse their client’s instruction if it involves the solicitor in a breach of the law or the code of conduct. Where a solicitor realises they have breached the code they may have a duty to report themselves to the regulator.'

Today Popal tweeted that she was 'overwhelmed with the kind messages of support', saying it was 'reassuring to know that there are those in the profession who do no and would not tolerate this kind of behaviour'.

The supportive messages Popal received immediately after her tweets show her experience is not unique.

Criminal defence solicitor Jon Black said his firm refused to give in to a client's demand that the firm replaced an Asian female barrister with a white male barrister. 'We are not going to pander to racism,' he said.

The Solicitors Regulation Authority's Code of Conduct states that solicitors must not discriminate unlawfully in the course of professional dealings and must provide services 'in a way that respects diversity'.

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Indeed, this was all abhorrent and was quite rightly drawn to the general public's attention!

However, I wonder how much support I would receive as a white person if I tried to complain now about the fact that some black and Asian pupils had bullied and assaulted me at school many years ago at a time when people were afraid to complain and no one would probably have wanted to know about such things either. In addition, not so long ago I was working with some lawyers here from ethnic backgrounds and I noticed that many of them would spend a lot of the day talking and having tea breaks as well as bad-mouthing some of their white colleagues. So I would have to conclude that the other face to racism, sexism etc isn't nice either.

Sometimes it is in the best interest of the client to have a counsel who can communicate with client in his or her language so if for this reason client makes a choice then i think client has the freedom of choice of lawyer but if client does this out of or due to presumption of discrimination than solicitor should refuse to act and uphold the code of SRA

Sometimes it is in the best intetest of the client to have a cousel who can communicate with client in his or her language so if for this reason client makes a choice then i think client has the freedom of choice of lawyer but if client does this out of or due to presumption of discrimination than solicitor should refuse to uphold the code of SRA

In my experience the request for a white male barrister would be on the basis of wanting to deal with someone of a similar cultural and male oriented attitude as the Client and so not racist or sexist at all.
Of course one can get an Asian barrister with a British cultural attitude or a female barrister with empathy towards male oriented attitudes but the chances are against it.
I have no problems with a female client requesting a female barrister or an Asian client preferring an Asian barrister.
Much of this PC stuff is pretty nonsensical really and it is sad that the Law Society and the SRA go along with it.

My office is based in a ethnically diverse town. I would say 70-80% of my clients are of Asian origin be it 1st or 2nd generation. I am white male.

Where a conflict of interest may arise I am asked to recommend another firm and the closest firm down the street who I am happy to recommend are all Asian.

Unfortunately I get some sort of reverse discrimination- Asians refusing to go to another Asian firm purely because they are Asian.

I have queried this directly with the client and it is based on a combination of trust issues and no wanting members of their community to know their business. Plus and this has been said direct to me: the native white guy is seen as more trustworthy.

Interesting. I believe the barrister was totally right. I once instructed a barrister (born in Pakistan but qualified in England and dual qualified in Pakistan) to appear in an immigration tribunal. The judge refused to hear the barrister unless he produced the original of his practising certificate (which of course the barrister could not instantly do because it was in his London chambers). I told the judge that he was unlawfully discriminating in that he would never have done that to a white ethnically English barrister - and the judge reported me to the Law society for bringing the profession into dispute. The complaint was of course dismissed, but the obvious race discrimination was very distasteful.

It is not a matter of whether or not the client "is" racist. It's a matter of whether the legal profession should be acting on ( in effect supporting) racist requests from clients in matters relating to legal process.

It's very disappointing to see responses on this thread which appear to think it's OK to do so.

I am a white English born Welshman and have suffered similarly as a Higher Rights Advocate. I have been fired for not being Chinese for a sentence hearing in Isleworth, Bengali for a trial in Southwark and Arabic in the Central Criminal Courts again for a trial. I was less worried about not being accepted for being who I am but more concerned that the clients on each occasion seemed to want their own choice of advocate based on him or her being prepared lie in court for the client where I made it clear I would not.

I agree with those who believe a client has an absolute right to request Counsel dependent on their prejudices. Equally an instructing solicitor or barrister should be entitled to decline such instructions and the client can then look elsewhere.

SRA does not understand the law.
Clients have the right to choose based on whatever characteristics they may wish.
Solicitors are under no duty to ascertain if clients are racist or not. And if it's obvious that my client is racist , I am under no compulsion to cease acting for them or report to SRA...
In my view, the solicitor in this case shouldn't have told the barrister for withdrawing instructions. It's a matter of common sense, not law.
The barrister shouldn't have made it a big deal and go on her tweets. Leave twitter alone, it's not professional. Even though Trump likes it, but he "ain't" a role model to follow anyway...
Lastly, SRA is wrong to suggest that the solicitor should have refused instructions in circumstances as these.

Such a will wouldn't be void if prepared by the testator/rix personally so why should a solicitor have qualms about acting on instructions from a client to prepare such a will? If the solicitor's personal convictions make the preparation of such a will distasteful, no doubt he/she can follow the simple solution proposed by anon in the third paragraph of his/her post @ 14:21 yesterday.

"Which of us would refuse to prepare a codicil to a client's will to exclude a son or daughter who had married a person of the same gender or a different race or religion or had decided to change gender?"

I suppose the answer is that you prepare the will/codicil as per the client's instructions, but advise of the risk of a claim under the IPFDA. You then discuss with the client whether to prepare a letter of wishes which explain the reasons for the will. If the client's reasons are politically incorrect, you advise on the risks of setting them out in a letter of wishes.

Or you just say that you're too busy and that there is a bloke/woman/person of indefinite gender down the road who does wills and codicils.

Now I come to think of it: why are barristers, alone among self-employed people, given the benefit, dubious though it may be, of the Equality Act? If I need the services of a solicitor, an accountant, an architect, any other professional, or indeed of an independent butcher, baker, or candlestick-maker, I can choose according to my own prejudices and it's not even technically illegal. In the case of professionals in particular I may well follow personal acquaintance or recommendations which tends to mean selecting in the client's own image. Why are barristers different?

I am the same Anon who asked about preparing a "discriminatory" will, I would still like to hear whether anyone would refuse to do it.

The solicitor was totally wrong. There is never an excuse for a solicitor to pander to the racist, sexist or other prejudiced views of a client. As a retired solicitor and managing partner with over 40 years in the law, I saw too many examples of solicitors over-identifying with their clients to the detriment of their professional duty to comply with the code of conduct. It is not in the best interests of a client to have their case progressed on the basis of prejudice even if it is their own.

My, lay, view of this is that I would be unlikely to engage Ms Popal, because she seems not to have realised that she was opening the can of worms that the multitude of comments show was immediately recognisable to traders. Her only way of showing herself in a good light is the, I think unlikely, one of now providing the full facts. I also think there'll be something dubious about the 'accused' solicitor if he doesn't do the same. There'll be no breach of confidentiality as the client won't be named. If I were the client and had one of the wholly rational and, therefore, non-racist reasons for my choice, I would find it amusing, again remaining anon, to throw my oar into your professional sea.

I have never told counsel the reason a clients want to change counsel. It might even be a confidential reason or it might just be kinder not to tell them (eg the client thinks counsel is rude or something - I just can't see why you would upset counsel by saying what the reason is).

Anon @ 16.34 ("Why are people assuming the solicitor has done anything wrong?") makes a very good point. The solicitor need not have told Ms Popal the precise reason why her instructions were being withdrawn, only that the client wanted to instruct someone else. The race/gender preference of the client need not have featured in the conversation between the solicitor and the barrister - the fact that it did is open to more than one interpretation.

Just to lighten the discussion i am down in the SRA forms as from Afghanistan which is shown as number 1 on the list. Reason being i was born north of the Tweed but in land that has changed hands between Scotland and England some 13 times since 1296. Spent first 5 years in England next 22 in Scotland and then the rest of my life in England. When SRA ask for nationality they do not give a category for UK or British but only a reference to the principalities of Scotland and England. Hence i am from Afghanistan.
As regards the case my sympathies lie with my countrywoman but to really understand the issue we need more information.

It’s a slippery slope between what is alleged here and appointing people according to gender or race due to assumptions they will better fit the role or to meet diversity targets. Whether counsel in a case, employment, or public appointments. And it’s very common in today’s society where that view has become entrenched by some as acceptable. For example all four Chairs of the Independent Inquiry into Child Sexual Abuse were women- coincidence? Justified? The (white) highly experienced judicial Chair of a well known Inquiry came under attack on diversity grounds. If you believe in equality, then save for narrow exceptions, appointments should be on merit, without taking account of someone’s background. And I’m not white British myself.

I am of the view that client's have the right to choose their legal counsel - whether it is on the basis of race, religion or any criteria they want to impose. Given the importance of legal matters, and their often sensitive nature, a client must be comfortable with the person they speak to and confide in - its the same with choosing a doctor. A female Muslim might not want a white male doctors inspecting her private parts, and equally might not want a white barrister representing her. So my view is that the law is an ass in this case and bring back freedom of choice and expression.

Why are people assuming the solicitor has done anything wrong? If I send instructions to Counsel and then my client decides not to proceed with the barrister, I have no choice but to (try to) recall the papers. For all we know the solicitor sacked the client in disgust and told the barrister what a racist cretin the client was. In that case it was an act of integrity on the part of the solicitor to have notified Ms Popal of what went on behind the scenes. It's lazy journalism from the Gazette to just report something that happened on Twitter, especially on a topic that's of importance to practitioners everywhere and is being featured as the day's headline story.

Sympathy t0 the unfortunate lady but every one is the victim and perpetrator of discrimination and prejudice as these are human characteristics. You need broad shoulders to work in the law especially the criminal law. I suspect as she gains experience and success she might find herself the victim of more not less prejudice. If you expect people to be fair you are in the wrong game!

The absence of further and better particulars is most unhelpful in this case. If Ms Popal choses to put this matter into the public domain, surely it behoves her not just to 'tweet' a brief and bland statement but to give the truth, the whole truth and nothing but the truth. Instead - if I might adopt a seasonally appropriate analogy - she seems to have lit the blue touchpaper and retired.

I am surprised a solicitor would even make such a call. Why has everyone just jumped to the assumption the client was being racist?

Some people have significant difficulty understanding accents. Research has been carried out into this and it is a genuine problem. The client may adopt a carte blanche rule to avoid having to explain themselves - I've come across this before and it is nothing at all to do with racism when you dig into it.

Also, if it is acceptable that abused women are entitled to female representation, abused males are also entitled to the same choice.

Effective communication is so important, and we mustn't jump to the wrong conclusions.

There's a myriad of reasons for people's preferences, and frequently have nothing at all to do with racism or sexism.

As a white female, I once represented an alleged wife-beating Asian male in the police station. He didn't like being advised by a female, because I suppose it (in his eyes) placed me above him. He shouted at me in some rather unpleasant terms, making derogatory comments about my ethnicity and gender, before sacking me.

I walked back to the office, nervous at having lost a client , and wondering whether I could have done anything differently. Just as I walked in, one of the admin staff answered the phone to the police station. She shouted across to the (male) senior partner, "He said he'll stay with us if we send him a male solicitor." The senior partner was a real "man's man" so his reply surprised me, "Tell him he can find another firm, we don't discriminate in this one."

If this is true, it's appalling and an investigation is merited, with disciplinary action to be taken if warranted.

Obviously in certain instances, a degree of discrimination could be justified - e.g. Anonymous at on: 9 November 2018 14:43 GMT - but this does not appear to be one of them.

All that said, I do not see how putting this onto social media without reporting it to the relevant authorities is the appropriate course of action and doubt it will do much to discourage this kind of conduct in future.

There are clearly a bunch of lay persons posting ill-judges opinions on here (at least I sincerely hope they are). It seems everyone has missed a rather pertinent fact in their rush to conclude racism. Ms Popal was already briefed right up to a trial which was ineffective due to lack of judge. How long was she counsel for? The longer it was the less likely race was the factor. Could it be the client had no confidence in her competence and wanted to revert to what he’s always had before?

"I'm really sick of these old white buffoons sitting as judges. Public school old boys with no clue about real life. Tottering, pigmy intellects, struggling to stay awake during hearings."

If you are talking about High Court judges, that certainly isn't my experience of them. Often white, male and public school, certainly. But not doddering or slow of intellect. And surely it's 'pygmy' (although use of such an adjective is itself a little dubious in this context).

A solicitor should choose the barrister who is most likely to get a good result, and that choice should be made by the solicitor not the client. The solicitor in this case had made that choice. To go back on that choice because of the client's prejudice was shameful, and unbecoming of the profession.

Doesn't anyone else when selecting counsel, consider which counsel is likely to be best able to handle the other side's witnesses? I have used female counsel where there is a suggestion one of the other side's witnesses is an MCP because it has an added irritation factor. Or is that discriminatory too?

I have every sympathy for counsel in this case feeling aggrieved/bemused/indignant if colour/ethnicity was the only reason. I wonder what clout her clerk has in dealing with the solicitor's firm?

"that is not correct in my view. I happen to believe that men are better than women at growing beards. that is not sexist..."

No, but the example given was of a characteristic (gender or race) that would best serve the case. That implies that there is something about one barrister's gender and/or race that would make them 'better' than another. The beard analogy is therefore not an analogy at all. It's entirely distinguishable.

What amazes me is the "double standards" in all spheres of life as regards race. As regards in the "Justice" (their word not mine as I would call it "INjustice") field, they should have far more Judges from other races because at present it is a "white" monopoly.

I once had 3 Met Police officers come around to my house and start making monkey noises . Hard to believe maybe for some, but 100% true. And I am white. That was when they were watching a pornographic video at my house !!!!!

Some interesting reading. Being an Asian female solicitor I am outraged that someone thought a "white male" would do a better job because of those attributes alone. However, I do think there are circumstances where requesting a specific barrister for reasons deeper than race/gender preference can be justified.

I work primarily in the Children's Services sector where most of my work centres on allegations of sexual, physical or emotional abuse. Just last week I explained to a barrister's clerk why I preferred the instruction of a white female barrister to conduct a JSM for me because the Claimant's abusers were her father (white male) and his manager (Asian male). I had no guilt in saying to that clerk that I believed a white female barrister was likely to be found less intimidating and more trustworthy by the Claimant in those circumstances, making it more likely we could resolve the claim at the JSM.

I suspect my reasoning in those specific circumstances are not really applicable to the general race/gender bias that is more common out there, and that Ms Popal suffered, although at the same time I don't think that choice of instruction should be removed from me or my client.

Part of the solicitor's job is to find Counsel who is capable of doing the case. Surely the solicitor should have told his client in no uncertain terms that the solicitor had selected Counsel he thought best for the case and that he could not advise a change of Counsel on such grounds. If the client persisted the solicitor could have told them that they were not prepared to act where the client was unreasonably ignoring their advice. All this is part of "Client Care"; clients can have mistaken perceptions about all sorts of matters in the law and in such circumstances as this it is the solicitor's duty to drill down and find out what is going on with the client. If it turns out that the client is a racist (and that the only ground for the client not wanting a barrister who is not white and male is that he "doesn't like foreigners or non-whites" ) then the solicitor has ample grounds for ceasing to act.

anon @ 14.00 that is not correct in my view. I happen to believe that men are better than women at growing beards. that is not sexist - I don't believe men are intrinsically "superior" to women, just that a man would be better at that particular task.

it is the woolly dumbing down of racism and sexism to any and every issue which touches upon race or gender that serves to undermine efforts to tackle the real problems that there are in this area

Forget clients, I've been before judges who I KNOW have ignored, dismissed or not seriously considered my representations because of an inherent (whether conscious or unconscious) white bias. I've had to take them seriously to task at times, and have always had to fight harder & more tenaciously than the "white guy" when in court.

I'm really sick of these old white buffoons sitting as judges. Public school old boys with no clue about real life. Tottering, pigmy intellects, struggling to stay awake during hearings.

Cart the whole lot out to their plush retirement villas and bring in fresh blood.

Well, Ms Popal and the relevant solicitor can answer the relevant questions. So let's hear from them. Some journalism is required: get proper statements from both. The identity of the solicitor is known to Ms Popal and there is no reason for her not to disclose it.

Call me old-fashioned, but I like to hear the full story before reaching conclusions. I'm not willing to judge this on the basis of a "tweet" to which their has been response from the lay client or solicitor.

Why is it assumed that the decision by the client was racist? Racism is the belief in the superiority of one race over another, but s/he may simply have believed, in the circumstances of the case that particular attributes of gender and race would best serve his case. or s/he may indeed be racist - we simply don't know.

If I requested an older barrister because I thought they would bring more gravitas to the proceedings, is that ageist?

Martin Callan: Neutral reason? What neutral reason? If we're to believe Ms Popal, this was the only reason. And pray tell, which offence would anyone be committing under the Equality Act in this scenario? Hmm???

This is beyond outrageous. The acting solicitor ought to have known better and provided a neutral reason for dis-instruction, or advised the client that they were not prepared to be a party to a potential offence under the Equality Act. This is shameful discrimination which has no place in our modern, open tolerant and diverse society where merit alone should be the determining factor

"Hard of thinking"? Gosh, how funny and clever you are. So clever that you have not realised that Principle 9 is directed at "your role in the business" and has nothing to do with instructions from clients.

I worry that there are comments by people trying to excuse this type of behaviour with very specific hypothetical scenarios, including rape of a woman. So he’s not a racist, he’s a nice guy, it’s just that the barrister reminds him of his rape victim so it’s a bit “awks”?

Anon @ 11:06 a brief perusal of the code of conduct will answer your question, but since you're hard of thinking Principle 9 states that you 'carry out your role in the business in a way that encourages equality of opportunity and respect for diversity'.

if the client was for example up for a rape charge against an Asian woman and thought it would help his case to have an Asian woman barrister representing him, would there have been any furore if he had rejected a white male barrister? of course not, because white males are now allowed to be discriminated against, indeed this is applauded because anyone having the temerity to have been born a white male is clearly part of the global conspiracy against anyone who is in anyway different to them. Having a female as my mother, and my wife, and my sisters, and my daughter, I am all for equality, but the pendulum has swung too far, offence is taken at the slightest thing, and all white males are assumed to be racist, sexist bullies

"The appropriate thing when faced with a racist client is not to commit a breach on the client's behalf, but to withdraw."

So racist clients aren't entitled to representation (and aren't entitled to representation by a lawyer of their choice)? How very progressive.

What "breach" is the solicitor committing on the client's behalf? A client who chooses his/her lawyer/doctor/grocer on the basis of race may be unenlightened, but is not committing any offence or "breach".

It is well known that a lot of male defendants in criminal cases involving crimes of a sexual nature will want a woman advocate for the way it might look to the jury. This has been going on seemingly for as long as women have been at the criminal Bar.

If we're going to be even-handed (and I believe that we should), ought we not discuss this issue as well?

Ms Blacklaws' comments need some explanation. Is she seriously saying that a solicitor in this situation must refuse to act any further for the client unless the client withdraws the relevant instruction?

"A solicitor should refuse their client’s instruction if it involves the solicitor in a breach of the law or the code of conduct." What breach of the law (or the code of conduct) does she think the solicitor is committing?

Is it a breach of the law (or code) to have a client who is a racist or who thinks (correctly) that judges are usually male and white? No, it's not.

“I don’t let it bug me,” [Ms Popal] said. “I just move on. It’s the only thing I can do.”

So, she doesn't let it bug her, but posts about it on Twitter in terms which could lead people to think that the client and solicitor are racists? What does she say about the client's reported belief that a judge might be more receptive to a white male barrister?

If I as a solicitor phone counsel's clerk and ask for the papers back in the case of X the clerk must and will return them. No questions to be asked and if they are no answer to be given.

And think of this. Which of us would refuse to prepare a codicil to a client's will to exclude a son or daughter who had married a person of the same gender or a different rce or religion or had decided to "change gender"? Or a will leaving double portions to sons? Or a will, and I did one of these a long time ago, leaving two third shares the substantial estate of the client (a widower) to his sons and the other thirdto his daughter for life and on her death to her son, because the testator wanted to protect her from fortune-hunters? All very Victorian, it mae me thnk of Wilkie Collins, but that was what he wanted to do and who was I to argue?

I think Ms Popal shoudl also state publicly the ethnicity of the both the client and Solicitor involved.

Secondly, anyone who has experience of criminal law cases knows of the 'open secret' that if you have a male defendant up on a sexual offences case (where the complainant is a female), it is generally considered advantageous in front of the Jury to have a female Counsel...

Are you surprised, I am certainly not!! The judicial system is so racist the client is perhaps scared he will not be heard correctly if represented by an Asian woman.... It's a dirty filthy fact of life in the UK and the legal fraternity, the judges both white male or female take full advantage of this. Sorry for being so blunt, but that's the truth

Some - not many - male clients in divorce will never trust a woman again; and vice versa.

So what does a solicitor do in that case? The cleint needs counsel in whom s/he has confidence. It's no good saying that s/he ought to have confidence in anyone whom the solicitor recommends; but people are not always rational.

"Christina Blacklaws, president, said: 'What we can be clear about is that solicitors must not discriminate unlawfully against anyone on the grounds of any protected characteristic.'"

Yes, but it wasn't the solicitor who was discriminating, it was the client. For all we know, the call which the solicitor then made to Ms Popal was an extremely apologetic one. Why else would the solicitor reveal the client's reason during that conversation? Solicitors don't have to give barristers reasons for withdrawing instructions from them; and it seems highly unlikely that the solicitor gave the reason in order to annoy or upset Ms Popal.

It has been reported elsewhere that the client wanted to change barristers because he felt that a judge would be more likely to listen to a white, male barrister. Like it or not, that is a credible explanation for the client's views. Who can blame a client for holding such a view, when the chances are that the judge is going to be a white male? Rather than leaping to the conclusion that solicitors are callous racists, why don't the Bar and the Bench consider the possibility that the blame for this situation lies with the Bench and the impression which the judiciary projects?

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